#### Hartley *et al. versus*Crawford *et al.*

*1.*A survey and patent was to Morrison for an island containing four acres and twenty perches, strict measure, describing it by courses and distances only; he conveyed four acres and twenty perches, with same description, “ excepting and reserving twenty perches at the upper end of *said*islandvarious leases, etc;, had been made of twenty perches of said island. These were to be taken as the twenty perches reserved in the conveyance.

2. The four acres and twenty perches were treated by the Commonwealth and Morrison as the island, the land above high'-water mark customarily made use , of as land.

3. The riparian rights of the island attached to the land to the banks to which the survey came, and to the ordinary low-water mark, subject to the rights of navigation. The owner of the island could use the sandy shore.

4. Ordinary high-water mark is the boundary of absolute title ; ordinary low-water mark that of the qualified right.

5. Stover *v.*Jack, 10 P. F. Smith, 340, Wood *v.*Appal, 13 P. F. Smith, 210, approved.

November —, 1875.

Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Armstrong County,*of October and November Term, 1875, No. 7.

This was an action of trespass *guare clausum fregit el de ■bonis asportatis,*brought October 27th, 1870, by William Hartley, S. S. Metzgar, John H. Galey, and Robert Galey, against Gideon G. Crawford, and others.

The declaration was that defendants broke and entered the close of the plaintiffs, known as Upper Stump Island, containing six acres, more or less, in the Allegheny River, opposite the mouth of Clarion River, in the county of Armstrong, and the trees, timber, etc., stone, oil, and other minerals, did cut, pull up, pump, take, and carry away, etc.

The defendants pleaded that they were tenants for years of a certain piece of land of which Robert T. Morrison owned the freehold, beginning at the northwest corner of land conveyed by Morrison to Samuel L. Russell, on the 5th of January, 1865, and running thence by said land 7-|- perches to the northwest corner of said land, thence northwardly to the southeast corner of land leased or granted by Morrison to O. E. Shannon on the 18th of July, 1870, thence by said land westwardly to the southwest corner of same, thence sduth- . wardly to the beginning.

Both parties claimed under a patent, dated August 27th, 1860, to Robert T. Morrison, for “a certain tract of land, being an *island,*situate in the Allegheny River, . . . known as one of the ‘ Stump Creek Islands.’ .... Beginning at amaple, thence (describing it by courses and distances only) to the place of beginning, containing 4 acres and 20 perches, strict measure.” Morrison afterwards conveyed the land to *479the Stump Islands Oil Company, describing it, as in the patent, “ containing 4 acres and 20 perches, strict measure, excepting and reserving 20 perches at the upper end of said tract or island, which said party of the first part does not sell; being the same tract of land granted to ” Morrison by the patent above mentioned.

In 1871 there was a survey of the whole island, as it then appeared, and it was found there was about 16 acres above that mentioned in the patent. The *locus in quo*was above the extreme end of the 4 acres and 20 perches.

The plaintiffs claimed under a lease from the Stump Islands Oil Company of the island “ up to the Morrison reservation,” and that this lease covered the *locus in quo.*

The land described in the defendants’ plea was above the upper end of the reservation, and covered the *locus in quo.*

The question was whether the reservation covered it.

The case was tried September 9th, 18.73, before Louan, P. J.

The plaintiff gave evidence as follows:

Application of Robert T. Morrison, dated February 5th; 1860, and setting out that he“ took possession of two vacant islands, contiguous to each other, in the Allegheny'River, in the county of Armstrong, near the mouth of Stump Creek, called ‘ Stump Creek Islands,’ one thereof containing 6 acres, and the other about 2 acres.....Resided thereon, and made valuable improvements adjoining them, ever since,” and desired to obtain warrants and patents therefor, under the act of January 27th, 1806, and asked for a warrant of survey and appraisement.

Order to appraisers issued, February 13th, 1860.

It recited the application of Morrison, “ to purchase an island in the Allegheny River.....known as one of the ‘ Stump Creek Islands,’ containing about 6 acres, etc., and contiguous to another island this day applied for by the same applicant,” and directed the appraisers to make a “ valuation of the lands contained in said islands.”’

The warrant was issued to the county surveyor, April 26th, 1860; it recited the application of Morrison to “ take up au island, etc., known as one of the ‘ Stump Creek Islands,’ etc., and contiguous to another island, the same day applied for by the same applicant,” etc.; also the report of the appraisers, that the island contained 3 acres and 150 perches, etc. The survey was returned August 27th, 1860.

On the same day a patent issued to Morrison for *“*a certain tract of land (being an island) situate in Allegheny River, in Perry Township, Armstrong County, known as one of the ‘ Stump Creek Islands,’ and a little above the mouth of said creek, beginning at a maple” (describing the tract, etc., by *480courses and distances only), etc., containing 4 acres and 20 perches, strict measure, which said tract was surveyed in pursuance of a warrant dated the 20th day of April, A. D. i860, granted to the said Robert T. Morrison, “ to have and to hold, etc., unto the said Robert T. Morrison, his heirs and assigns forever, free and clear of all restrictions as to mines, etc., excepting and reserving only the one-fifth part of all gold and silver ore for the use of this Commonwealth,” etc.

Deed, Robert T. Morrison and wife, dated January 5th, 1-865, to Samuel L. Russell, in consideration of $8000, for a piece @f land known as one of the Stump Creek Islands, beginning at a maple, etc. (describing precisely as in the patent), “ containing 4 acres and 20 perches, strict measure, excepting and reserving 20 perches at the upper end of the said tract, or island, which the said party of the first part does not sell, being the same tract of land which was granted to Robert T. Morrison by the Commonwealth of Pennsylvania, by patent bearing date the 27th day of August, 1880. . . . To have, etc., the said piece of land *containingfour*acres, strict measure.”

Declaration of trust, dated December 12th, 1871, by Samuel Russel], reciting the conveyance from Morrison, of January 5th, 1865, of a tract of land known as one of the Stump Creek Islands, etc.; the declaration certified that the consideration for the conveyance was paid by William Hartley and twenty-three others, incorporated as “ The Stump Islands Oil Company,” and that it was held by Russell in trust for the company. The company appeared to have existed as an association from December 30th, 1864, but were incorporated May 24th, 1865.

Lease, Stump Creek Islands Oil Company, dated March 20th, 1869, to Edward Single and E. H. Long, and their associates, William Hartley being one, for part of the island, from a point in it “ up to Morrison’s reservation,” including the ground in dispute.

*William Hartley*testified: At the time the suit was brought the plaintiffs were in possession, and were when the defendants entered and put down their well; plaintiff drew dividends from the well called “ Island King, No. 1,” which was below the Morrison reservation.

*A.*Gordon, county surveyor, testified: That when he ran the survey the water was high, a common freshet just breaking up; the lines were run as close to the water’s edge as could be ; they were guided by a fence on west side and a wall on east side, which had been thrown up to protect that .side. Witness was there in May, 1871; everything which .had been there had been taken away by a high flood. In *481September, 1871, he ran around the whole island; found 16 acres 47 perches in the upper part; in the whole island 20 aeres and a few perches.

The “Weller” well (that sunk by defendants, and part of the alleged trespass), was there in 1871 ; it was 74 perches from the extreme upper end of the island; about four-fifths of the *whole*island is above the Weller well.

On cross-examination he said : When he first ran around in 1861 he surveyed all the land he could see, the balance was overflowed with water; in May and September, 1871, the land above the original survey was hard where there was sand, where there was none it was soft; all outside of the survey appeared to be a sand-bar and made ground ; “ twenty perches ” was marked on the upper 20 perches of the line as witness first located the islands. There was no soil outside of the old survey; there was soil inside ; the part outside of the original survey was not capable of cultivation. There was a breakwater about the middle of the upper end of the island.

There were several witnesses who testified that there was cultivable land above the original survey; some, that there was as much at the Weller well as below; also that there had been much washing during the last twelve or fifteen years, and that the island had decreased; that the two islands joined in low water, but were separated when the water was high; that there was little or no difference as to cultivation between the original survey, and that above; that grapes grew there.

*O. E.*Shannon, who had two leases from Morrison, dated in April, 1870, for 20 perches, less 10 square feet of Stump Island, testified that after he got his leases the 20 perches were marked and fixed; the lower line was above the maple tree; the plot would be below the Weller well; Morrison gave him a lease “ to put down ” above, if witness would put down a breaker to protect his part of the island.

Plaintiffs rested.

For defendants, *A. Gordon*testified: In 1871 he surveyed the same island on which he had laid the warrant in 1860, and cut off 20 perches at the head of the island, including all the trees at the upper end of the island ; immediately above was all water ; took everything but what was covered with water; took in all the tillable land ; ran as close to the bank as he could. The land above the survey is a bar, such as is at the head of every island, not capable of cultivation ; the island had materially changed. A draft made by him in accordance with his survey took in the Weller well, above the head of the island.

*482Porterfield, who had been with the survey in 1860, testified that the place of the Weller well was then submerged; the upper part of the island perfectly dry.

Other witnesses for defendants testified in the same manner as to the island and the part above it.

*Morrison*testified that he claimed the beach above as appurtenant to the 20 perches. In 1860, the body of the island was cultivated, corn, oats, etc., raised; he did not make the application because of the oil, but to save his home.

The defendants gave in evidence an agreement between Morrison and Joseph Weller and E. Crawford, dated July 22d, 1870, leasing to them a piece of land containing about 20 perches, being all the land between the lands of O. E. Shannon and S. L. Russell’s lease, reserving to Morrison the surface, the lessees to have the right to lease ground, etc., for thirty years, the lessees to deliver one-fourth of the product.

By an agreement, dated July 18th, 1870, betweenMorrisón and O. E. Shannon, reciting leases referred to in plaintiff’s evidence, and that there was some dispute as to the location, it was agreed, to avoid difficulty, that Shannon would “ take a sufficient quantity, of the bar, or the upper point of the island, in lieu of the 20 rods aforesaid for his lease, free of royalty.” Shannon in consideration agreeing to throw a rip-rap across the upper end of the bar, so as to protect the land below it. The draft of defendants in evidence showed that the rip rap was considerably above the Weller well.

The defendants gave evidence of having gone- into the possession of the *locus in quo*under the lease, sunk a well, built engine-house, etc.

Also, léase datpd April-7th, 1871, from Morrison to Shannon, of “ the whole of the bar or point above the breaker on Stump Island.”

The plaintiffs’ points and the answers were as follows:

1. Under the laws of Pennsylvania, an island means all the land lying in one body and surrounded by water, having a soil capable of sustaining vegetation, woods, fisheries, or other advantages arising from its local situation.

Answer: It is necessary, in order to constitute an island under the laws of Pennsylvania, that there be soil capable of sustaining vegetation. Woods, fisheries, or other advantages alone, are not sufficient. Wherefore the point is answered in the negative.

*****

4. The officers of the land office have no power to divide an island, or grant anything less than the whole thereof; and the patent issued by the Commonwealth to R. T. *483Morrison, datéd the 27th day of August, A. D. 1860, vested in said R. T. Morrison the right to the whole island, and its appurtenances, as defined in the 1st, 2d and 3d points, without regard to the number of acres, or courses or distances stated in said patent.

Answer: This point is affirmed, with the explanation, that to constitute it an island there must be a soil, on part at least of the island, capable of sustaining vegetation.

6. The true reservation of the 20 perches at the upper end of said island, in the deed of R. T. Morrison to Samuel L. Russell, dated the 5th day of January, 1865, is to be confined to the upper end of said island in dispute, where soil is found capable of sustaining vegetation, wood, fisheries, or other advantages, as the ground stood at the time said R. T. Morrison or his grantees were ready and intended to locate said reservation.

Answer: The 20 perches must be located in a convenient shape at the upper end of that part of the island above ordinary high-water mark, as of the date of the deed of Morrison to Russell, viz., January 5th, 1865, provided, that in no event it shall come further down than to have allowed a clear four acres above high-water mark for the grantee in that deed. If there was more of such soil than 4 acres and 20 perches, on January 5th, 1865, the grantees take all but the upper 20 perches. Jf there was less, the grantees must still have their four acres, and the grantor will take only the portion, if any left, at the upper end of such land. Each of them will, however, take their riparian rights or beach between high and low-water mark, incident and adjacent to their particular parts. The location of such rights to be determined by lines drawn at right angles to the river front, at the point of division. This point is answered in the negative.

7. If the jury believe that the defendants, or any of them, entered without the plaintiffs' license, upon any part of said island not- embraced in the reservation of 20 perches, as defined in the sixth point, they are trespassers, and the verdict should be for the plaintiff.

Answer: This point is answered in the negative.

8. If the jury find from the evidence that R. T. Morrison leased to O. E. Shannon the ground for two oil wells, with a protection of 100 feet below said wells on said island, this would constitute in law a designation of the place at which said Morrison claimed his reservation of 20 rods ; he will be confined in his location of 20 rods to the piece thus designated, and cannot now shift his said location.

Answer: This point is answered in the negative.

*484The Court further charged:

“ The grant by the Commonwealth, in their patent of August 27th, 1860, carried to Morrison, the patentee, the ownership of the land to the river, although described by distances and courses, the marks and lines of which were upon the banks. The river itself is found on the draft as the adjoiner, and the patent conveyed the absolute fee simple title to all the surface above high-water mark, and the riparian right to all from that to the line of low water. In short, the patent conveyed the whole island, with the incident of losing the soil by wasting, and the right of gaining by accretion. On the 5th of July, 1865, the date of the deed of Morrison to Russell, we may regard Morrison as the owner of the island in the manner described. Out of the reservation of 20 perches in that deed grows the present difficulty. As to this we instruct you that this deed must be taken at least as a grant of all the island but the 20 perches off the upper end, however much there may have been in the island. The reservation could in no event be more than 20 perches of land above ordinary high-water mark, although the grant outside the reservation might include much more of the same character of land than four acres. But the grant must and did include at least four acres of land above high-water mark, although the taking of this quantity may not have left 20 perches of the reservation of that class of land. If the four acres at the date of the deed included all the land of the island above ordinary high-water mark, then the reservation meant nothing. If, however, after the taking of the four acres there was 20 or any less number of perches of the land above ordinary high-water mark left, then, to the excess of such perches over four acres, but to a quantity in no event exceeding 20 perches, would the reservation apply. TheTocation of the reservation must have this further qualification (as seems to be the position of defendants’ counsel); it cannot come down so as to include more than 20 perches off the upper end of the original patent survey as now on the ground, but may (as we have seen by reason either of there not being enough of surface left after the grant of four acres in the deed, or because of the existence of ground above ordinary high-water mark at the upper end of the island and outside of the original survey), include less than 20 perches inside the original survey. {Whatever quantity of reservation, if any, there may be under the grant given, it must be shoved to the upper end of the island, yet inside the line of ordinary high-water mark.)

“ The reservation, as we have seen, is entitled, if there be *485space for it, to its location above. the line of ordinary high water, and will carry with it as an incident to its ownership, all the beach or distance between high- and low-water marks on its immediate front, determined by lines drawn at right angles with the river front at the point of division.

“(In order to constitute an island within the meaning of the law, there must be a soil capable of sustaining vegetation, the cultivation of grain or esculent roots in common seasons, not a denuded gravel beach or sand-bar, nor a place subject to overflow during the ordinary freshets.) That it might be subject to overflow in extraordinary floods, would not however affect it. A place where there were growths common to sand or gravel bars or beaches, and cut off by ordinary high waters and ice gorges of the winters, could not, within the meaning of the definition of an island, be called soil capable of sustaining vegetation. ■ When an island, held under the laws of the State, is the subject of transfer, we look for that kind of land recognized in the law as an island.

“ (But in referring to the question of the location of the reservation, we need not discuss the soil further, the fair test is the ordinary high water.) If, within the rules we have given, you can locate the reservation at the upper end inside the line of ordinary high-water mark, then so locate it; and in that event, if the disputed well be within such location, or above it and within the line of the riparian rights of the reservation, then the plaintiffs are not entitled to your verdict. Otherwise the plaintiffs are entitled to your verdict, as we instruct you they had sufficient possession to sustain an action if they had the title.”

The verdict was for the defendants.

The plaintiffs took a writ of error.

They assigned for error the answers to their points, and the parts of the charge in brackets.

J. *B.*Neale, *E. S. Golden,*and.H. *I).*Foster, for plaintiffs in error,

cited acts of Assembly, March 6th, 1793, sect. 5 ; 3 Sm. L., 94 ; April 2d, 1822, sect. 1, 7 Id., 549 ; January 27th, 1806, sect. 1, 4 Id., 268, 2 Br. Purd., 911, 912, pl. 109, 112, 127. As to what constitutes an island they cited Wood *v.*Appal, 13 P. F. Smith, 210 ; Stover *v.*Jack, 10 Id., 340.

*J.*Gilpin, for defendants in error,

referred to same acts of Assembly. These acts are *in pari materia:*Hunter *v.*Howard, 10 S. & R., 247. There must be soil to constitute an island: Allegheny *v.*Reed, 12 Harris, 42; Allegheny *v.*Nelson, 1 Casey, 333.

*486Judgment was entered in the Supreme Court, November 4th, 1875.

Per Cdriam :

The precise definition of an island is not the material question here, but rather the intent and meaning of the contract between the parties. The application of Robert T. Morrison was for two islands in the Allegheny River, containing six acres; the survey and patent to him for the one in question were for four acres and twenty perches, strict measure, and his deed to S. L. Russell, was for “ four acres and twenty perches, strict measure, excepting and reserving twenty perches at the upper end of said tract or island.” Can any one doubt that the twenty perches thus reserved were the same excess of twenty, perches mentioned in all the documents relating to his title ? They were to be of the *said*tract or-island. What tract had been mentioned or said ? Clearly none but the tract or island of four acres and twenty perches. This is what both he and the Commonwealth treated as the island, the land above ordinary high-water mark ; that which is customarily made use of as land. The riparian rights of the island attached by the grant of the Commonwealth to the land between the bluff bank to which the survey came, and the ordinary low-water mark; and, subject to the rights of the public in the navigation, the owner of the island might use the sandy or pebbly beach or shore. Ordinary high-water mark is the boundary of absolute title, ordinary low-water mark that of the qualified right: Stover *v.*Jack, 10 P. F. Smith, 340; Wood *v.*Appal, 13 P. F. Smith, 210. Then on what principle of propriety or of law should we send R. T. Morrison to the upper end of the sandy or stony beach to find his twenty perches, and cut off his riparian rights'? Clearly it was not the intent of his contract. When he reserved part of what the Commonwealth granted to him he did not intend to yield his absolute right to twenty perches of the grant, and throw himself upon his qualified riparian right. We think the learned judge interpreted the reservation correctly. We discover no error in this record.

Judgment affirmed.